Writing in the National Post, Macdonald-Laurier Institute Senior Fellow Benjamin Perrin calls on the federal government to do more to keep violent offenders in prison.
Perrin says it will be difficult to develop a system for leaving high-risk offenders behind bars that can withstand a Charter challenge.
But, he argues, this is the only way to achieve the justice system’s primary goal: protecting the public from serious harm.
Benjamin Perrin, Sept. 26, 2014
How could a violent criminal who the parole board believed was likely to reoffend be released from prison? That’s the question being asked in the wake of the tragic killing of Surrey, B.C., teenager Serena Vermeersch.
In 1991, Raymond Caissie was sentenced to 22 years imprisonment for sexual assault, forcible confinement and robbery. He was deemed too dangerous to be released, until his entire sentence was served, and a public warning was issued in June 2013 that he was a high-risk to reoffend upon release. Seven months later, he was sent back to jail for three months for breaching the conditions of his release. This week, he was charged with second-degree murder in the death of Vermeersch.
It is exceedingly rare for offenders to actually serve their entire prison sentences. Under the federal Corrections and Conditional Release Act, most offenders are eligible for full parole after serving just one-third of their sentence and, if unsuccessful, they are automatically given “statutory release” after two-thirds of their sentence is served. Only the worst of the worst serve their entire sentences, because they are deemed likely to seriously reoffend — causing death, serious harm or committing a sexual offence against a child upon release.
Monitoring high-risk offenders in the community is a challenging and resource-intensive task. British Columbia needs an independent review of what happened in this case and what more could have been done. But, there are surely some offenders whose risk is simply too great to be trusted not to reoffend.
Justice Minister Peter MacKay says that he’s interested in exploring options to provide for the ongoing detention of high-risk offenders who are likely to violently reoffend. There will be significant Charter issues in this exercise. Offenders are generally punished for what they’ve done, not what we fear they may do in the future — they benefit from the presumption of innocence going forward. Once an offender has served his sentence, he has paid his debt to society and is protected against double jeopardy, such that a person cannot be punished twice for the same criminal conduct.
Despite these important principles, our laws recognize that the preventative protection of the public from serious harm must, in certain circumstances, come first. The security certificate regime protects Canadians from future acts of foreign terrorists and, since being amended, has been upheld by the Supreme Court of Canada. The recently enacted high-risk mentally disordered accused designation, extends the detention of persons found not criminally responsible on account of mental disorder, who are deemed a risk to the public. And, of course, the dangerous offender designation permits the indeterminate imprisonment of violent repeat offenders. Currently, however, it can only be imposed at the time of sentencing, not later. Ironically, the most reasonable risk assessment to justify such a designation would presumably be after rehabilitation has failed.
The protection of the public from high-risk violent offenders is surely a paramount consideration that the courts would be compelled to give substantial weight. The key will be in how any new measures to provide for the ongoing detention of high-risk violent offenders are crafted.
Such a new designation would have a much greater chance of surviving the inevitable, and important, scrutiny of the courts, if it includes procedural safeguards, including periodic reviews of detention and ensuring that only the highest-risk and most violent offenders are subject to such an ongoing detention regime. Once such an offender has been assessed as no longer posing a threat to public safety, a staged and prolonged period of strict parole should apply.
Parliament should also pass Bill C-26, which would increase the maximum and minimum penalties for a wide range of sexual offences, increase the likelihood that convictions for such offences will be served consecutively, increase reporting obligations of sex offenders travelling outside Canada and create a High Risk Child Sex Offender Database.
It is inexcusable that our justice system has no effective tools to address cases such as this alleged tragic murder in Surrey. Developing them in a way that will pass a Charter challenge will be no easy task, but it is essential to protect Canadians and ensure confidence in our justice system.
Benjamin Perrin is a criminal law professor at the University of British Columbia and a senior fellow at the Macdonald-Laurier Institute for Public Policy.
